Citation NR: 9631434
Decision Date: 11/04/96 Archive Date: 11/14/96
DOCKET NO. 94-42 935 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently evaluated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. L. Wright, Associate Counsel
INTRODUCTION
The veteran had active service from January 1966 to January
1968. This appeal arises from a September 1993 rating action
of the Boston, Massachusetts, Regional Office (RO) which
denied an increased rating for PTSD. The veteran has
appealed this determination.
At his hearing on appeal in September 1994, the veteran
raised the issues of service connection for a hip disability
and reopening a prior claim for service connection for a back
disability. The veteran claimed that he currently suffers
from both disorders. The Board of Veterans’ Appeals (Board)
finds that these issues are not properly before it at the
present time and that they are not inextricably intertwined
with the issue on appeal. Therefore, the veteran’s claims
for service connection for hip and back disabilities are
referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in effect, that his service-connected
PTSD has worsened in recent years and is more disabling than
currently evaluated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence does not warrant a grant of an increased evaluation
for PTSD.
FINDINGS OF FACT
The symptoms of the veteran's PTSD have not produced more
than definite social and industrial impairment.
CONCLUSION OF LAW
An increased rating in excess of 30 percent for PTSD is not
warranted, according to the schedular criteria. 38 U.S.C.A.
§§ 1155, 5107(a), 7104(c) (West 1991); 38 C.F.R. Part 4,
including §§ 4.1, 4.2, 4.7, 4.10, 4.129, 4.130, 4.132, Code
9411 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
By rating action of April 1984, the RO granted service
connection for PTSD and assigned a 30 percent rating from
April 1983 under Diagnostic Code (Code) 9411 of the U.S.
Department of Veterans Affairs (VA) Schedule for Rating
Disabilities (38 C.F.R. Part 4), based on the veteran’s
wartime combat stressors and a diagnosis of PTSD on VA
examination. In a rating action of October 1989, the RO
reduced the veteran’s rating from 30 percent to 10 percent
disabling, based on improvement of his PTSD shown on the
latest VA examinations. However, his 30 percent disability
rating was restored from the date of reduction by rating
action of July 1990, based on testimony received from the
veteran. The veteran filed a claim for an increased rating
for his PTSD in February 1993.
In April 1993, VA medical records dated from December 1985 to
April 1993 were entered into the record. A hospital record
indicated that the veteran was admitted for one day in
December 1985 due to depression following the dissolution of
a relationship with his girlfriend. In July 1992, the
veteran was seen for therapy. It was noted that the veteran
had previously had frequent nightmares of Vietnam, however,
these nightmares only occurred occasionally now. Additional
scheduled sessions were canceled by the veteran because he
could not arrange suitable childcare after work.
In a VA medical record of March 1993, the examiner noted that
the veteran had a history of drug and alcohol use. He denied
that he was using drugs or alcohol at the present time. The
veteran also denied suicide attempts, pending legal charges,
or medical problems. The examiner noted that the veteran had
been inconsistent about attending scheduled therapy sessions.
On examination, the veteran was found to be alert, oriented,
cooperative, well dressed, and well groomed. His speech was
goal directed and normal in rate and tone. The veteran
described his mood as “O.K.” He denied suicidal or homicidal
ideation. The impression was PTSD, rule out dysthymia, and
rule out substance abuse. A medical record of late March
1993, noted that the veteran had been kept quite active with
the care of his son and stepdaughter. It was reported that
he had handled this responsibility reasonably well.
In a VA medical record of April 1993, the veteran reported
that he was experiencing increased stress because of
conflicts with his ex-girlfriend over child custody. He also
claimed to have had occasional nightmares once or twice a
month. The veteran denied having flashbacks, depression, or
suicidal ideation.
The RO received in May 1993, VA outpatient records dated from
July 1991 to April 1992 concerning the counseling of the
veteran and his girlfriend. In July 1991, the couple
complained of increased tension and conflict in their
relationship. They claimed that their relationship was
disintegrating. The examiner opined that the veteran’s PTSD
caused him to have trouble with intimacy and to be sensitive
to stress, which resulted in his being irritable and
distancing himself. In November 1991, it was noted that the
veteran had a hard time living with things being “messy” and
had rigid standards. The examiner associated this complaint
with the veteran’s PTSD in that he felt an exaggerated sense
of discomfort if things were “under control.” In December
1991, the veteran’s girlfriend complained that he was too
strict with his stepdaughter. The examiner associated this
with the veteran’s PTSD. In April 1992, it was noted that
the couple was contemplating separation.
The veteran’s treating therapist at the VA, in a letter dated
in February 1994, noted that the veteran had been treated for
his PTSD since 1983. He also noted that the veteran was on
prescribed medication. PTSD symptoms were reported to
include sleep disturbances consisting of nightmares and
frequent awakenings, intrusive thoughts and flashbacks of
combat experiences, startle responses, avoidance of groups of
people, easy irritability, and headaches. The therapist
opined that the veteran’s PTSD had impaired his daily
functioning, resulting in a withdrawal from normal social
interactions and limitations on his work adjustment.
The veteran was afforded a VA psychiatric examination in
March 1994. It was reported that the veteran had received
regular therapy and prescribed medication from the VA. He
was employed by the U. S. Post Office and claimed that he did
“O.K.” at this job. However, he asserted that he worked with
practical jokers who would set off “whistle bombs” that
startled him. The veteran had broken up with his girlfriend
two years ago, and since then, has lived alone. He had joint
custody of their son and claimed to enjoy the twice weekly
visits of his son. The veteran had not been hospitalized in
recent years and had found group therapy to be of no help.
His main hobby was watching television, but his counselors
had warned him not to watch combat movies. The veteran
claimed that a recent stressful event was the finding of his
brother’s remains in Vietnam. On examination, his speech was
intact and his answers were appropriate and informative. The
veteran still experienced combat related nightmares and
reactions to loud noises. He was bothered by a lowered mood
which had at times interfered with his sleep. No evidence
was found of suicidal ideation. His orientation and
intellectual functioning were intact. The veteran’s insight
and judgment were good. The diagnosis was PTSD.
At his hearing on appeal in September 1994, the veteran
testified that he had nightmares, flashbacks, disturbed
sleep, startle reactions, and irritability due to his PTSD.
The veteran claimed that after returning from Vietnam, he had
a lot of difficulty adjusting back into society. He asserted
that his girlfriend left him two years previously because she
could not handle his PTSD symptomatology, which included
nightmares and “walking off into the woods.” The veteran
testified that he had no social contacts except for his son
and stepdaughter. He asserted that any other social
relationship he had tried did not work. He claimed that he
was estranged from his family because he felt uncomfortable
when he would visit them. The veteran maintained that his
children now lived with him. He acknowledged that a woman
was moving into his house to provide childcare in exchange
for room and board. The veteran testified that he worked for
the postal service as a letter carrier. He claimed that he
could handle this job because he could work alone away from
others. The veteran asserted that he was forced to use his
vacation time, a few days at a time, in order to relieve
stress. He estimated that he used five weeks of annual leave
a year for this purpose. He claimed that he was never able
to take a real vacation. The veteran testified that he had
turned down a supervisory position because he would not be
able to handle the stress. He noted that he attended
counseling once a week and saw a psychiatrist once a month.
He had been prescribed medication for his PTSD, but claimed
that it only worked on occasion. The veteran claimed that
the only things which kept him “together” were his children
and his weekly counseling sessions. The veteran believed
that he deserved a higher disability rating because his PTSD
had disrupted his life, resulting in his not being as
socially and economically advanced as his peers who did not
serve.
The first responsibility of a claimant is to present a well-
grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim
for an increased evaluation is well-grounded if the claimant
asserts that a disorder for which service connection has been
granted has worsened. Proscelle v. Derwinski, 2 Vet. App.
629, 632 (1992). In this case, the veteran asserted that his
PTSD is worse than currently evaluated, and he has thus
stated a well-grounded claim.
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1995).
Separate diagnostic codes identify the various disabilities.
The VA has a duty to acknowledge and consider all regulations
which are potentially applicable through the assertions and
issues raised in the record, and to explain the reasons and
bases for its conclusions. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). These regulations include, but are not
limited to, 38 C.F.R. §§ 4.1 and 4.2 (1995). The
requirements for evaluation of the complete medical history
of the claimant's condition operate to protect claimants
against adverse decisions based upon a single, incomplete, or
inaccurate report, and to enable the VA to make a more
precise evaluation of the level of the disability and of any
changes in the condition. Schafrath, 1 Vet. App. at 594.
Social integration is one of the best evidences of mental
health and reflects the ability to establish (together with
the desire to establish) healthy and effective interpersonal
relationships. However, in evaluating impairment, social
inadaptability is to be evaluated only as it affects
industrial adaptability. 38 C.F.R. § 4.129 (1995). In
evaluating psychiatric disabilities, the severity of
disability is based upon actual symptomatology as it affects
social and industrial adaptability. Two of the most
important determinants of disability are time lost from
gainful work and decrease in work efficiency. An emotionally
sick veteran with a good work record must not be
underevaluated, nor must his condition be overevaluated on
the basis of a poor work record not supported by the
psychiatric disability picture. 38 C.F.R. § 4.130 (1995).
Under Diagnostic Code 9411, a 30 percent evaluation for PTSD
requires definite impairment in the ability to establish or
maintain effective and wholesome relationships with people,
and psychoneurotic symptoms that result in such a reduction
in initiative, flexibility, efficiency and reliability levels
as to produce definite industrial impairment. A 50 percent
evaluation requires that the ability to establish or maintain
effective or favorable relationships with people be
considerably impaired, and that, by reason of psychoneurotic
symptoms, the reliability, flexibility, and efficiency levels
are so reduced as to result in considerable industrial
impairment. 38 C.F.R. Part 4 (1995).
In Hood v. Brown, 4 Vet. App. 301 (1993), the United States
Court of Veterans Appeals stated that the term "definite" in
38 C.F.R. § 4.132 was "qualitative" in character, whereas the
other terms were "quantitative" in character, and invited the
Board to "construe" the term "definite" in a manner that
would quantify the degree of impairment for purposes of
meeting the statutory requirement that the Board articulate
"reasons or bases" for its decision. 38 U.S.C.A.
§ 7104(d)(1) (West 1991).
In a precedent opinion dated November 9, 1993, the General
Counsel of the VA concluded that "definite" is to be
construed as "distinct, unambiguous, and moderately large in
degree." It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." VAOPGCPREC 9-93 (O.G.C. Prec. 9-93). The
Board is bound by this interpretation of the term "definite."
38 U.S.C.A. § 7104(c) (West 1991). With these considerations
in mind, the Board will address the merits of the claim at
issue.
The evidence reveals that the veteran has social impairment
due to his PTSD. He is estranged from his family and had an
unsuccessful personal relationship of only a few years. His
VA therapist noted that his problems with his girlfriend were
due, in part, to his PTSD symptoms. However, he has been
able to maintain employment with the U. S. Postal Service for
a number of years. He is also able to maintain a close
relationship with his son and stepdaughter, and has been able
to fulfill the responsibilities of their continuous care.
The Board finds that the severity of the veteran’s PTSD is no
more than moderately large. This corresponds with a definite
social and industrial impairment as outlined in the Schedule
at Code 9411 for a 30 percent disabling rating.
ORDER
An increased evaluation for PTSD, in excess of 30 percent, is
denied
I. S. SHERMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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